Sherigham Elisha Odhiambo v Republic [2010] KECA 332 (KLR)
The bottom line
#Kenya's Court of Appeal replaced a murder conviction and death sentence with manslaughter, ruling the attackers lacked intent to kill.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant was properly identified as one of the people who took away and assaulted the deceased
- 2.Whether the evidence supported a conviction for murder or only manslaughter
- 3.Whether the appellant discharged the burden under section 111 of the Evidence Act having pleaded an alibi and having failed to explain the deceased's injuries
- 4.Whether essential witnesses not called by the prosecution rendered the evidence inadequate
- 5.Whether the appellant's constitutional rights were violated by delay in production in court under section 72(3)(b) of the Constitution
Key legal issues
#Adequacy of evidence despite uncalled essential witnesses
Failure to call the body-identifying witnesses, report-makers and investigation officer did not compel an adverse inference against the prosecution on the facts of this case.
Applying Bukinya and another v Uganda, the court held the material evidence was not so barely adequate as to warrant inferring that the uncalled witnesses' evidence would have been adverse to the prosecution. David was the only identifying witness and his recognition evidence, based on eight months' acquaintance and lantern light, was accepted despite acknowledging, per R v Turnbull, that mistakes in recognition are possible.
Identification and the alibi
The single-witness recognition evidence ousted the plea of alibi; the appellant failed to discharge the statutory burden of explanation.
David had known the appellant for about eight months, the group used a lantern, and the appellant was known by name. The alibi of attendance at a health event did not displace the accepted evidence placing him at the scene. Having taken the deceased in good health and returned him injured, the appellant's failure to explain the death attracted the burden under section 111(1) of the Evidence Act.
Murder versus manslaughter
On the evidence, malice aforethought was not established; the proper conviction was manslaughter under section 202 as read with section 205 of the Penal Code.
The young men went unarmed, took the deceased away and returned him alive; the motive for the assault was unclear. Such acts, the court held, are hardly consistent with intent to kill or cause grievous harm. The State conceded that manslaughter was the appropriate offence, and the court agreed, substituting that conviction and a ten-year term running from the date of conviction in the superior court.
Constitutional complaint of delay in production in court
The complaint was not open on appeal because it was never raised at trial or on first appeal and section 84 was not invoked; the right was waived.
The appellant was arrested on 7th June 2005 but produced in court on 31st August 2005, beyond the fourteen days under section 72(3)(b) of the Constitution. However, being represented by counsel at trial, he had the opportunity to raise the complaint there or proceed under section 84 of the Constitution. His failure amounted to waiver and the court declined to entertain it.
Legal principles established
#- A first appellate court must revisit, analyse and evaluate the evidence afresh and reach its own conclusion, while allowing for the trial court's advantage of seeing and hearing witnesses.
- An accused who pleads an alibi but is placed at the scene by reliable evidence bears the burden under section 111 of the Evidence Act of proving facts especially within his knowledge, including an explanation of the circumstances of the death.
- A complaint of violation of constitutional rights at trial cannot be raised for the first time on appeal where the appellant was represented and failed to invoke section 84 of the Constitution; such failure amounts to waiver.
- Where evidence establishes unlawful killing but does not disclose an intention to kill or cause grievous harm, the appropriate conviction is manslaughter rather than murder.
Court orders
#- 1.Appeal allowed
- 2.Conviction for murder quashed
- 3.Sentence of death set aside
- 4.Conviction substituted with manslaughter contrary to section 202 as read with section 205 of the Penal Code
- 5.Appellant sentenced to ten (10) years imprisonment from 15th May 2007
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.CR.C. No. 90 of 2005
- Jurisdiction invoked
- First appellate jurisdiction over a conviction and sentence of the High Court exercising original criminal jurisdiction (murder trial)
Relief refused
#Acquittal / complete allowance of appeal
The court found the appellant was one of those who caused the death, justifying substituted conviction for manslaughter
Relief on the claim of violation of constitutional rights for delayed production in court
The appellant was represented at trial, never raised the complaint, and failed to proceed under section 84 of the Constitution, thereby waiving the right
Costs
No costs order made in the judgment.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
As the first Appellate Court we are enjoined to revisit the evidence that was presented to the superior court which was the trial court, analyse it, evaluate it, and come to our own independent conclusion but always bearing in mind that the trial court had the advantage of hearing and seeing the demeanour of witnesses
Without that explanation, the appellant did not discharge the burden placed upon him by section 111 of the Evidence Act.
we allow this appeal, quash the conviction for the offence of murder and set aside the sentence of death. We substitute therefor a conviction for the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code.
The appellant is sentenced to serve imprisonment for a period of ten (10) years from 15th May 2007, being the date of his conviction in the superior court.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sherigham Elisha Odhiambo v Republic [2010] KECA 332 (KLR)", Case Analysis (2010). Criminal Appeal No. 478 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/332/eng@2010-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.